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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8445
Experience:  I have been practising for 30 years.
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I have a buy to let property which was rented out until

Resolved Question:

I have a buy to let property which was rented out until about a year ago when I went to live there due to sudden changes in my personal circumstances. I still live there.
The lender has filed a possession claim against me for the property on the sole ground that I am in breach of the mortgage term that states that I am not to reside in the property.
I have offered to either redeem the mortgage with a re-mortgage if I can, or redeem the said breach if I cannot raise a re-mortgage by vacating the property and putting a tenant in the property by 31 December 2016.
The lender is refusing to accept that I redeem the said breach and insists that I either redeem the mortgage or give them vacant possession at a specified date by 31 December 2016.
My question is this:
(1) If I vacate the property now and put tenants in it, have I remedied the breach which is the sole grounds of their court possession claim?
(2) If the answer to question 1 above is ‘Yes’, does that then legally make their claim null and void/invalid or whatever the legal word/phrase is in the eyes of the court?
(3) If the answer to question 2 above is ‘Yes’, then how do I present the proposal to the court stating that “I intend to remedy the breach by 31 December 2016” by vacating the property and letting it out to tenants? Would the court accept such a future date?
(4) If I vacate the house immediately and show the court proof of that and proof of tenancy by parties unconnected to me, as different from suggesting a future date as in paragraph 3 above, would that make their case null and void/invalid in the eyes of the court?
(5) If the answer to questions 1 and 4 above are ‘No’ then even if I vacate, does the law view that since I was in breach at all, it does not matter that the breach has been remedied as I seem to think, and the lender’s claim for possession remains valid?
(6) Any further advice is welcome.
Thank you.
Submitted: 4 months ago.
Category: Law
Expert:  F E Smith replied 4 months ago.

Have you thought of renting out the property and then using the rental income to rent another property thus remedying the breach immediately?

Why have you suggested December 2016?

Have you applied to remortgage the property now?

Customer: replied 4 months ago.

Thank you.

Yes I have thought of renting out the property then using the rental income to rent another property. That is why I ask whether if doing that would nullify their court claim as I would have reversed the situation which forms the grounds of their claim.

I have suggested December because they are willing to go give me until December to re-mortgage but I have not been able to get a mortgage so far and I am not confident that I will by December. That is why I need to have the option of vacating by December if I do not get a re-mortgage.

Expert:  F E Smith replied 4 months ago.


Provided when you get to court you can confirm that you have remedied the problem, there is a slim chance that the court would still grant possession. If you are in breach of your mortgage terms and it was a residential property, and he would remedied the breach, the court would almost certainly not grant possession.

The difficulty here is that this is not a residential mortgage but a buy to let mortgage. It seems odd that the lender who charges more money for a buy to let mortgage will take exception to an owner living in the property even down to the extent of taking them to court for repossession. However that’s the view they take.

In many mortgage contracts and in particular if you were in arrears with the mortgage, they will simply appoint LPA receivers and you will in effect lose the property because once LPA receivers are managing it, it is almost impossible to get it back.

There is no guarantee as to what is going to happen in court but to answer your questions:

1 there is a good possibility but no guarantee that if you remedy the breach, they will not get possession. However if you do not remedy the breach they almost certainly will.

2 I’m not certain what you’re saying here because I think this is covered in the question above

3 it’s unlikely the court would allow you six months to remedy this. It would expect you already have them remortgage application in place. There is absolutely no point in going to court if you are still living in the property because the chances are that you would just lose. You need to get out I am afraid because at least then you have remedied the breach.

4 It would make their claim void, that’s a bad choice of words, it means that there is more chance that they would not get possession.

5 What the court will look at is whether the remedy that the lender is asking for is disproportionate to the breach and provided you have remedied the breach in good time and not just the day before you get to court, you increase your chances that the lender will not get possession.

F E Smith, Advocate
Category: Law
Satisfied Customers: 8445
Experience: I have been practising for 30 years.
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